The High Court of Karnataka allowed a writ petition seeking setting aside an order dismissing a civil suit as abated. The Court set aside the lower court's order and restored the suit to the file.
Set aside the order dismissing the suit as abated and restore the suit to the file.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JUNE, 2022
BEFORE
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.190 OF 2018(GM-CPC)
BETWEEN:
GURUMALLESHA S/O LATE BASAVAIAH @ BASAPPA AGED 56 YEARS R/A KAMANAGUDI BEEDI KANAKAPURA TOWN RAMANAGARA DIST - 562117
...PETITIONER
(BY SRI.PRAKASH M H, ADVOCATE)
AND:
THE RESPONDENTS NO.1 AND 2 ARE R/A BESIDE POST OFFICE, RAMANAGARA ROAD, KANAKAPURA TOWN, RAMANAGARA DISTRICT - 562117
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AGED 39 YEARS
RESPONDENTS NO.3 AND 4 ARE R/A DHARMASTHALA CIRCLE, RAMANAGARA ROAD, KANAKAPURA TOWN RAMANAGARAM DIST - 562117
…RESPONDENTS
(BY SRI.ANIL KUMAR.M.V, ADVOCATE FOR R1-4)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD: 10.11.2014 PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC KANAKAPURA IN O.S.NO.519/2013 VIDE ANNEXURE-F AND TO RESTORE THE SUIT.
THIS PETITION COMING ON PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the plaintiff questioning the order dated 10.11.2014 passed by the learned Senior Civil Judge and JMFC, Kanakapura, in O.S.No.519/2013, wherein the suit is dismissed as
abated.
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comprehensive suit in O.S.No.519/2013 seeking relief of declaration to declare that plaintiff as absolute owner in lawful possession and enjoyment over the suit schedule property and for consequential relief of permanent injunction. Pending suit, first defendant died. The petitioners filed an application to bring the legal representatives of deceased defendant No.1 on record. The said application was allowed and the matter was adjourned to enable the petitioner/plaintiff to amend the cause title. Since there was default on the part of the plaintiff in not amending the cause title in terms of the L.R. application, the learned Judge has proceeded to dismiss the suit as abated.
petitioner. Perused the order under challenge.
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set aside abatement and to permit to bring the legal representatives on record. The learned Judge by order dated 20.10.2014 allowed the applications. The matter was adjourned to 10.11.2014 to enable the petitioner to amend the cause title. On the ground that cause title is not amended, the learned Judge has proceeded to dismiss the suit as abated. This order prima facie, is palpably erroneous. On the previous date of hearing, the L.R. applications are allowed and the proposed legal representatives are permitted to come on record. Therefore, there is no question of abatement. Non amendment of cause title on account of death of defendant No.1 would not necessarily result in abatement. Therefore. said reasoning is perverse and the consequential dismissal of the suit has resulted in miscarriage of justice. A comprehensive suit is filed seeking relief of declaration. Order VI Rule 18 of CPC provides
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procedure to amend pleadings. In the present case, plaintiff was required to amend cause title. Learned Judge was not justified in dismissing suit as abated when legal representatives were already brought on record. Even if there is mistake, negligence, inadvertence or even infraction, learned Judge erred in passing the impugned order. Even if plaintiff failed to amend the cause title, Trial Court ought to have proceeded with the suit. Therefore, this Court is of the view that the learned Judge was not justified in so casually dismissing the suit as abated. The order under challenge is not at all sustainable.
ORDER
The writ petition is allowed. The order dated 10.11.2014 passed by the learned Senior Civil Judge and JMFC, Kanakapura, in O.S.No.519/2013 in
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dismissing the suit as abated is set aside.
Consequently, the suit is restored to file.
Sd/-
JUDGE
*alb/-
1 issue framed by the court
Whether dismissal of a suit for abatement on non-amendment of cause title after legal representatives were brought on record is justified.
GURUMALLESHA S/O LATE BASAVAIAH
PARVATHAMMA W/O LATE MAHADEVAIAH
AKKAMAHADEVI @ MALA D/O LATE MAHADEVAIAH
PANCHAKSHARI S/O MAHADEVAIAH
PALAKSHA S/O MAHADEVAIAH
SACHIN SHANKAR MAGADUM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
